Allocation and Reallocation in Accordance with the Partners\u27 Interests in the Partnership

If a partnership agreement either fails to allocate an item of partnership income, gain, deduction, credit, or loss, or does so invalidly, section 704(b) requires the item to be allocated in accordance with the partners\u27 interests in the partnership (PIP). A brief portion of the section 704(b) regulations interpret this reallocation standard, providing guidelines of varying specificity. Commentators agree that the guidelines are vague and puzzling. The courts have not often had to apply this portion of the regulation. However, in the event that the courts do employ section 704(b), they have assigned an implicit priority to the different guidelines, eliminating some from discussion without comment, and avoiding any general discussion of the reallocation problem. This elliptical judicial practice follows that of the examples in the regulation itself. As a consequence, reallocation presents, apart from a few straightforward safe harbors, straits of uncertainty for taxpayers and their advisors. This article examines the regulatory guidelines and offers a taxonomy of situations to which they apply. The article concludes that the guidelines do not provide systematic answers - so that the courts have been right to apply them selectively and intuitively - because the guidelines represent policy concerns that cannot be readily harmonized. When properly analyzed, the relevant portion of the regulation appears to contemplate two standards of allocation (or reallocation). The first standard would allocate partnership items that have tax consequences, whether they affect non-tax economic consequences or not, in the same proportion as the partners would share the economic consequences of partnership operations, distributions and liquidation in a no-tax world (the virtual-economic-agreement standard). The second standard requires allocations that eliminate capital account deficits of partners who have no deficit restoration obligation, or otherwise match economic risk and tax advantage, without regard to the partners\u27 intended economic arrangement (the curative standard). It is characteristic of curative allocations to depart from the partners\u27 economic agreement. Thus, the two standards often have incompatible consequences; they are certainly not interchangeable or equivalent. Despite the regulation\u27s unambiguous imposition of both standards, it is written as if it established a univocal standard; the regulations extensive reliance on the phrase in accordance with the partner\u27s interest in the partnership suffices to suggest this. This equivocation creates a risk of discordant allocation decisions by courts and confusion for taxpayers and their advisors